ALJDEC decisions subject to certification as final

2020A-04426-CHC-ROC · Registrar of Contractors · 2021-04-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Tracy A Coates,

COMPLAINANT

William Clyde Anderson

DBA: Paint and Stain Experts,

License No. ROC 301758,

RESPONDENT

No. 2020A-04426-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 25, 2021

APPEARANCES: Complainant Tracy A. Coates appeared on his own behalf. Respondent William Clyde Anderson appeared and was represented by John Salskov.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

William Clyde Anderson doing business as Paint and Stain Experts (Respondent) is the holder of License No. 301758 issued by the Arizona Registrar of Contractors (Registrar).

On or about April 7, 2020, Tracy A. Coates (Complainant) signed a contract with Respondent for an exterior repaint job at his home.

On or about September 14, 2020, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Christopher Allison. After a jobsite inspection, Investigator Allison issued a written directive to Respondent that provided as follows:

After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. § 32-1154(A), and now issues this Directive requiring you to take appropriate corrective action. Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a citation, discipline of your license, and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on November 9, 2020.

RESTRICTIONS

 You may not perform or hire other contractors to perform work that is outside the scope of your license.

 If your license is currently suspended for administrative reasons1, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the suspension of your license(s) has been lifted or your license(s) has been reactivated.

*** NOTE: RESPONDENT MAY ONLY OPERATE AND SUBCONTRACT

WITHIN THE SCOPE OF THEIR CR-34 LICENSE. ANY WORK OUTSIDE

THE SCOPE OF THEIR LICENSE CAN ONLY BE REMEDIED BY

FINANCIAL SETTLEMENT WITH THE COMPLAINANT. ***

DIRECTIVE REQUIREMENTS

You are directed to remedy the following violations by the appropriate means:

Compliance Item: 1 - Non "vinyl safe" paint was used on vinyl siding causing it to shrivel and buckle.

Investigator’s Observation: At the time of the inspection the vinyl siding on the home had buckled, shriveled, and warped. The Respondent informed me that for the paint to be "vinyl safe" it cannot contain black. I inspected the left over paint. On the label it shows that the paint contains black. The Respondent claims that the paint was mixed wrong by the supplier. However, the Respondent should have inspected the product the verify that the paint was mixed correctly for this application prior to applying it. Respondent shall correct in a manner appropriate to workmanship and industry standards.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Following the issuance of the written directive, Investigator Allison granted Respondent and extension of the deadline to November 30, 2020.

Complainant obtained a quote from Lowe’s to replace the vinyl siding totaling $15,003.39.

On or about November 23, 2020, a legal assistant from Respondent’s counsel’s office emailed Complainant the following:

Please send us a copy of the bid you received from Lowes on replacing the siding. Also, please let us know whether or not you will be obtaining any other bids.

Emphasis added.

On or about November 23, 2020, Complainant replied to the email as follows:

No more bids, like having a big company behind our project, going to go after the $6750 bond and relief fund and use loews. We have all the pictures we need, should be a no brainer, we are going to go ahead and get fixed, the existing siding is getting worse and exposing more of what’s underneath.

All errors in original.

After the deadline in the directive expired, Investigator Allison was notified the matter had not been resolved.

The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a); and A.R.S. § 32-1154(A)(22).

Investigator Allison testified that Respondent’s license did not allow Respondent to install new siding to address the workmanship issue. Investigator Allison indicated that Respondent’s only option to comply with the written directive was to enter into a financial settlement with Complainant.

Complainant testified that he wanted to use Lowes to install the new siding because he wanted a large company that could stand behind its work in case something went wrong. Complainant stated that he did not recall telling Respondent that he would not allow anyone else access to the property to prepare a written bid.

Mr. Anderson testified that he believed the labor cost on the Lowe’s bid was excessive, and he wanted to obtain additional bids to compare that those bids with the Lowes bid before entering into a financial settlement with Complainant. Mr. Anderson maintained that Complainant denied Respondent access to the property to obtain additional bids.

Administrative notice is taken of Respondent’s prior License record on April 14, 2021. Such prior License record reflects that Respondent’s License No. 301758 was first issued on December 15, 2015, and is active. Such prior License record also reflects that there were two open complaints and no prior complaints against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960).

The evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.

The evidence established that Respondent did not reach a financial settlement with Complainant following the written directive being issued. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).

While Respondent asserted that Complainant’s email constituted a denial of access, Complainant’s email did not indicate that Respondent could not enter the property to obtain further bids – only that Complainant was not going to obtain any further bids. Therefore, Respondent failed to establish that Complainant denied access.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. 301758 for a period of one day.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(E).

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty.

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 40 days from the date of that certification.

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-137160-45720000Done this day, April 14, 2021.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000